Posted
by
Soulskill
on Friday December 04, 2009 @01:19AM
from the by-reading-this-you-bequeath-me-all-your-possessions dept.

Last month we discussed news that Microsoft had banned hundreds of thousands of Xbox users for using modified consoles. The Electronic Frontier Foundation has now pointed to this round of bans as a prime example of the power given to providers of online services through 'Terms of Service' and other usage agreements.
"No matter how much we rely on them to get on with our everyday lives, access to online services — like email, social networking sites, and (wait for it) online gaming — can never be guaranteed. ... he who writes the TOS makes the rules, and when it comes to enforcing them, the service provider often behaves as though it is also the judge, jury and executioner. ... While the mass ban provides a useful illustration of their danger, these terms can be found in nearly all TOS agreements for all kinds of services. There have been virtually no legal challenges to these kinds of arbitrary termination clauses, but we imagine this will be a growth area for lawyers."

Microsoft's network, Microsoft's rules. They're 100% in the right for banning modded consoles. Basically you can play your pirated games or you can play on Live, but not both with the same console. Now what angers me is how they'll send out replacement consoles for warranty repairs that are already banned from Live, and tell the recipient that they must have a modded console and refuse them any recourse. What also angers me is how it would be easily within the law to ban for almost ANY reason, leaving the user with little to no recourse.

I applaud Microsoft's banning of modded consoles, but condemn Terms of Service in general because they're 99.999% in the favor of the writer. I mean, the company.

I applaud Microsoft's banning of modded consoles, but condemn Terms of Service in general because they're 99.999% in the favor of the writer. I mean, the company.

I don't get it. You start out with "Microsoft's network, Microsoft's rules." Note that this isn't specific to Microsoft; you could replace them with any company that operates a network and it'd be the same concept. You then say you're against TOS policies as a blanket statement... what do you actually believe? Any company has the right to set terms of service for the use of their network, and it's up to the customer to decide if those terms are reasonable. If the customer doesn't think so, s/he can choose not to give that company money. It's very simple.

Aye and with all networks playing by the same basic tos and the internet and other networks increasingly becoming part of everyday life and an increasing requirement for employment and business allow said companies to arbitrarily dictate who/how/when their services are used is completely fair.

They braking the law by locking out 3rd party stuff like who wants to pay $149.99 for a 120gb HD? when you can buy your own for way less or why can't you replace the dvd on your own?

You can do the same with cars and they can't say you used a 3rd party lube place / auto shop and then have the dealer lock out your car. It's same thing dealer lube at a very high price vs jiffy lube or some other place at a much less cost. Not only that there is court case out there to force the car manufacturers to give out th

That doesn't pass for justification. You paid them money in exchange for access to their network according to their terms of service. If you want the right to dictate how they operate their company, you'll need to be a shareholder (minimal influence unless you've got a hell of a lot of shares), on the board of directors, or a C-level employee.

And the companies making the games have every right to choose only to release their game on the Xbox. I'm all for open platforms, but you can't force these companies to use them if they don't want to. All you can do is not buy their games/systems.

Then what set-top video game machine do you recommend for people who prefer to play indie games? Even with XNA's limitations, Nintendo and Sony don't offer anything remotely close to XNA.

You could, you know, not modify the console, since you can play homebrew without a mod.

I would argue that just because you don't like the gaming offerings out there, it doesn't give the 'right' to get what you want. There are three competitors in the space, you can pick one, more, or none of them depending on your preference. I think this was a clear cut case, I might be singing a different song if they were banning for fleeting explitives or because you didn't buy enough MS points.

Say I want to develop a game that uses speech synthesis instead of having every line by every character voice-acted. XNA doesn't let me do this because XNA provides no way to generate audio at runtime.

Say I want to develop a game with a fantasy setting that includes words written in a made-up language. This page [xna.com] states that Microsoft has banned all languages from Xbox LIVE Indie Games other than those for which the Xbox 360 system menu has been localized.

Regardless, that's the trade-off. If you want to run on the XBox, you need to follow their rules. If you don't like their rules, go somewhere else (PC, for example), but be aware you might not get exactly the combination that you prefer, just because all the companies operating in the space don't offer it (or did and went out of business).

Of course, the big thing here is it was the XBL terms of service that were violated, not the hardware terms.

If your Xbox is modded, and as you've been banned from Live then thats probable, then sure - there is nothing stopping you from connecting to another service provider. Whether anyone is providing such a service is another question.

People have a right to fair use. By putting these restrictions on Live (although you don't *have* to use it, I know) MS is stepping on my right to make backup copies of games. (Note: I don't own any video game consoles at this point)

I'm a huge fan of fair use and being allowed to make backups of purchased items. Let's be honest here, though; couldn't a backup be made by simply making an exact copy of the hard drive's contents? Modding seems to be the issue here, not backups.

That's the beauty of dd [wikipedia.org]; it creates an exact binary image of the drive. It doesn't matter what filesystem is in use, and you can restore the resulting image to a brand new drive with dd as well.

not if the drive's serial number no longer matches.
plus the original xbox (don't know about the 360) used a little used feature of the ide spec involving a HDD password that was encoded into the bios - drive ignores any read/writes until someone transmits the correct code, making it somewhat difficult to dupe the drive

You can backup the drive, but only onto another branded xbox drive (which cost several times as much as a generic sata drive of the same capacity)...

But the games, even if they let you install the game to the hd you usually can't actually play it without having the original media in the drive. If you let kids play on the console, and a lot of kids play games consoles, the risks of damaging the games increases massively.

While I'm reasonably sure you meant the DVDs, you can't back those up without a proper press. Simple DVDRs will NOT cut the mustard without a modded console (the whole point of modding the console, in fact!).

If you meant the hard disk, the answer is equally "no". The X360 uses a custom firmware (copyrighted) on a mildly modified WD 2.5" hard drive. The contents are both obfuscated and lightly encrypted, so you can not meaningfully backup up the disk as a whole, or the contents, without MS sanction and assis

As is the company that makes the Xbox 360: it was found guilty of monopolizing the PC operating system market, and the United States government sanctions it by 1. continuing to enforce Microsoft copyrights and 2. licensing Windows from Microsoft.

at least until the Great Break Up.

Microsoft was scheduled for a breakup until the newly elected Bush administration intervened.

The problem is that they have no burden of proof to do whatever they want.

When you start affecting peoples lives with no due process it starts to become an issue.

XBox live is not a good example but I am sure there are services out there that people rely on for their lively hood and if someone were to commit an act on this network that the operator did not like they could be terminated.

That's pretty much my point. As long as the terms of service set forth by a company don't violate the law, the company absolutely has the right to enforce them. Those who complain about it seem to be taking a distinctly "think of the poor little guy who's getting beaten down" attitude, which I find amusing given the fact that nobody is going to die if they can't log on to some gaming network.

Here's the deal: we live in a society that operates under rule of law. If something isn't specifically forbidden, it's permitted. In contract law, unless jurisdictional restrictions exist that nullify a given provision, it's enforced. Even at that, severability clauses will likely keep other restrictive clauses in force.

You can ramble on about supposed morality considerations all day, but it doesn't change the fact that the law is the deciding factor, and the company that operates the network makes the rules unless otherwise constrained by the law. You aren't going to die if you can't log on to a gaming network and your civil rights aren't being violated, so I sincerely doubt any thinking person is going to care.

And the fact that I'm not running a company doesn't change the fact that everyone who is running a company only offers one-sided, unfair, and unconscionable TOSs. And it doesn't change the fact that an individual's choice to "not give this company any money" will not change TOSs one bit unless every consumer decides to stop consuming anything and everything.

That's simply not true, provided that you make your reasons clear to the company. Of course when you're dealing with companies as monolithic as Microsoft it's easy to feel ignored. But you get ten thousand people who cancel their Xbox Live subscriptions and indicate their reasons for doing so, MS will start to listen. I'm not talking about signing an online petition, but actually sending an email (or, gasp!, a letter) to Redmond. Obviously this applies beyond MS/XBL, and the number of people needed to ma

The TOS for Xbox Live hardly counts as a shirk wrap license, they are literally a Terms of SERVICE that you pay for every month. Good luck contracting any service that exists in the world without any terms that define what the expectations of that service actually are. I don't think there exists a harder agreement in law other than literally exchanging payment for an object rather than a service.

"What also angers me is how it would be easily within the law to ban for almost ANY reason"

That's always been true, whether they explicitly say so or not. They seem to exercise this prerogative rarely enough, however, that a vast majority of people don't care just how much control Microsoft wields in this matter, or at least don't care enough to stop using that system.

The important thing to realize is that Microsoft has actually REMOVED functionality from a banned console. It cannot be used as an extender for Windows Media Center. What is to stop them from crippling your device completely if they feel like it?
While Microsoft doesn't have to let you use their service (a separate issue all together), I've never seen a company allowed to cripple your hardware after you've purchased it, no matter what you've done.

No, it's in there somewhere. I don't remember how or where, but I do remember experimenting when I first got my xbox 360, and there is a media center setup screen where it asks you to input an auth code from WMC, and I remember going to my desktop, starting up WMC and authorizing the device and getting the code. I never used it beyond that, so I can't tell you exactly what it does, but it definitely has some sort of WMC interaction.

Not that I'm condoning it, but I think the reasoning there is DRM and maintaining a controlled path to the display. If you hacked the 360, you can compromise that path. Not sure that it makes sense, because I'd think anything you could do to the 360 to compromise it could just be done to the PC running WMC to begin with, but maybe that's not so. Maybe the 360 has some really weak ass DRM implementation that they are afraid you'll exploit.

I agree with the first statement. However, this recent round of bans has not only booted banned users from the microsoft network, but also reduced the OFFLINE capabilities of the console. The banning corrupts the NAND on the console, removing the ability to install games, purchased or otherwise, to the hard drive. Those who bought a large hard drive in order to install games to it to speed up load times (a function supported by the console, not something you get through modding) are now unable to do so.

I agree that kicking us off the network is WELL within their rights, but changing the capabilities of my console is not. I should be able to do what I want with my hardware, since I bought it. If I choose to mod it then, yes, I'm violating EULA and Microsoft no longer has to offer me support or access to their network, but they do not have the right to modify my hardware's offline capabilities.

While i hate microsoft as much as the next guy, i have to side with them on this one.

Now, if they reached out and bricked your console we would have troubles, but they can ban you from THEIR network for having blue hair if they wanted.. Banning people may not be a good business/PR move, but its well within their rights.

They're 100% in the right for banning modded consoles. Basically you can play your pirated games or you can play on Live, but not both with the same console.

Well, I haven't actually seen this confirmed in a media source, but I've read that people were banned for performing an unofficial hard drive upgrade. MS charges an insane amount for a larger HD for the 360, but people have found you can buy specific model drives, image the new drive with the proper firmware, and swap it into the HD case. That way you get a bigger HD for $50 instead of $200. This has no effect on a persons ability to do anything with the console except have a bigger hard drive (no copying g

Terms of service usually place lots of burden on you, and very little on the company operating the service...

They will send out already banned consoles as warranty repairs, and your screwed...They will ban you for things other than having a modded console, playing a game before release date will get you banned (people who work in game stores can often get games before release for example). Also using peripherals (like hard drives) which you bought in another region, or playing a console from another region

Basically you can play your pirated games or you can play on Live, but not both with the same console.

So are you saying any homemade game that uses speech synthesis is necessarily pirated? XNA, the "official" way to do homebrew on Xbox 360, lacks any way for a program to generate and play audio in real time.

I think Microsoft is being aggressive in it's strategy. Warnings, even many warnings and second chances, third chances, etc should be utilized before doing something irreversible like this (also an appeals process would be in order). It certainly is their right to ban people from their network based on a written policy but psychologically speaking they are angering a great many customers. By taking such extreme action, they are encouraging better hacks and workarounds in the future. Plenty of computer software is much more graceful and works well on a positive reinforcement encouragement system. Even Microsoft Windows and Office handle these types of situations much better. There will always be piracy but it should be discouraged and not challenged for the truly best end results. A lot less music is pirated now simply by offering it for sale in MP3 form and encouraging people to do the right thing.

I wholeheartedly agree with this. Terms of service are supposed to be the "teeth" that allow a company to take actions they believe are in the best interest of the network, other customers, and the company in general. That said, companies should do as much as possible to work through issues with customers before taking "final action" on any case. Exceptions would certainly need to be made for extreme cases, but immediate permanent action shouldn't be the rule. That's just awful customer service.

I have no problems with what they did; but I question their logic. Those consoles that are banned from Live for being "modded" can still obviously play pirated games. What they *can't* do is go on live and among other things purchase things. So while they will undoubtedly sell some more consoles (Craigslist and eBay are full of banned consoles) and probably some more games - I don't really see this as doing much to stop piracy - I only see it stopping any legit spending from those consoles.

Yeah, and they also can't install games to the hard drive, nor move accounts back and forth from a banned system to a non-banned system from what I understand. So yes there is a loss of functionality as well.

It was never to stop piracy, it was to sell more consoles! I don't think that the console division and the live division should be so interlaced. Banning live on modded xboxs doesnt stop piracy obviously, but sells more consoles.

How so? If a company banned me from a subscription service, the LAST thing I would do is go out and buy new hardware so I can continue paying monthly fees. Anyone that would do otherwise either has way too much disposable income or needs to get their head on straight.

Warnings are an interesting idea, but I wonder how they would play out in the real life? If people are aware they get 1, 2, 3 "Get out of jail free" cards, they do adjust their behavior accordingly. If you tell folks that mods are not permitted, and then allow them to get away with it, are you just pushing the problem further down the road? They're still going to raise hell when they get banned after a warning. Perhaps warnings just give folks more incentive to experiment with signatures that won't be d

Anecdotal, of course, but I've seen a lot gaming PCs where one part or another has failed (in one case, the power supply went, taking with it the mobo, CPU, and video card - any one of which cost a good chunk as much as an Xbox 360).

In fact, as somebody who got his first gaming console after the release of the Xbox's Jasper chipset (I gamed on PC long before that), neither I nor anybody I know has had a RROD with the new chipset (and only one person in that time with an older one). Don't get me wrong, the f

MS believes that if you mod your console it is sole purpose for playing pirated games even if you only use backup legit games, they have no way to tell the difference if you own the game legit or pirated it, or if you even download games at all. Its a case of Collateral Damage. Since you remote the copy protection coding outta the console they actually have a case against you like mpaa had against programs that removed the protection on dvd's for making backup's

Deliberately bricking the consoles would be a PR and financial disaster. It could also result in felony charges for whoever authorized it and knowingly aided in carrying out the bricking. That's not an answer. MS may not care if you mod the console, but they care very much if you pirate games (and that's what 99% of modded consoles are for [citation needed]).

Well, to be sure, were they of the mind to, they'd likey brick the console by doing a firmware check/upgrade with a new game. Or simply program new games to refuse to run on modded consoles. Point being, it could be done, but isn't.

If you enter into any contract, you have to abide by the rules. There's NOTHING new here. Online service, game service (like Xbox Live), Phone service... even a lawn mowing service has terms to its contract.

Guess what kids? Your actions have consequences. You should have the maturity to own up to those consequences.

Contracts (and contract law) aren't anything remotely new. They've been thought out by many a great thinker for millennia. Calling contract law a "growth market" is about as far from the truth as it gets. Contracts are one of the oldest, most hashed-out, and most concrete aspects of law in any society. The entire point of contract law is to avoid lawsuits, specifically because there is so little wiggle room if both parties agree to the contract.

In no event shall Microsoft be liable for any damages whatsoever, even in the event of fault (including negligence).
-- Windows XP Professional license agreement

What kind of contract is this? And the same contract allows Microsoft to change the terms of the contract at any time, without notifying me? I would never agree to such a thing. But, Windows is required in order to work. So I say out loud, "I disagree with these terms" and click the button to continue. Microsoft, having had a chance to respond and remained silent, can only be assumed to have agreed with my deal, since it clearly is continuing with the software installation. Obviously the whole thing was just a bluff to get me to agree to some ridiculously one-sided terms.

Terms like these I would never, ever accept in any deal, business or otherwise. Including negligence! Imagine a lease or even a parking stub with such language on it. It's basically admitting that they're negligent before the deal even starts...who on Earth would do business voluntarily with a party who says up front that you can expect negligence on their part?

I tend to edit these to my needs and save myself a copy. Of course by clicking "I Agree" I -am- sending these back to the originating server (if they don't get them, it's their negligence).Since they accept the edited copy, I can safely assume they agreed to changes.

What Microsoft is saying, is that if a bug in Windows causes you to lose all your data they won't be held financially accountable for it. If that wasn't there, every time someone lost work due to a BSOD Microsoft would have to pay up. The fact is, there is no way they would ever agree to terms like that.

I don't think it's unreasonable for Microsoft to refuse to cover my data loss so I enter into the contract with them. If you don't like the terms, don't accept the contract; it's as simple as that. You'll ha

If you don't agree with the terms, you don't click the "I agree" button. Simple as that.

Let's run with that thought for a moment. If I'm given a brand new copy of Windows 7 in Chinese, I won't be able to understand any written text on the screen. At the same time, it's entirely likely that I will manage to install the OS. If there's an "I Accept" and "I Decline" option presented, sooner or later I'll stumble upon the button that gets the OS installed. At no time will I have read or comprehended the EULA presented. How can my "agreement" be considered binding when a} I was never made aware

EFF doesn't have a problem with contracts, they're just pointing out a few facts: a) courts can void contract terms for various reasons. Witness the Early termination fees on wireless phone contracts in California. b) The EFF isn't necessarily saying the contracts aren't enforceable. They're saying no one's gone to court to see if they're enforceable. c) The EFF is saying that consumers need to pay more attention to this crap before they get raked over the coals the way the XBox modders did.

When I installed it, it popped up an EULA that stated that the company reserved the right to modify the agreement from time to time (changes to be posted to their website) and that my continued use of the software 30 days after these changes constitutes my acceptance of said changes.

I should mention, this is a retail boxed version of a game that doesn't require any online service to run.

Then there's Windows 7. Bought the upgrade to put a legit copy on a new system. But apparently, and this was stated nowhere online at the time of purchase (including Microsoft's site, and I checked thoroughly), this upgrade is only properly licensed if I put it on the computer that had the OEM version of XP on it. Impossible, as its motherboard died, and even the OEM XP had no mention on its packaging or on the website that it would only be valid on the first system it was installed on (as indicated by the motherboard in said computer, even if the motherboard needs replacement).

You really are treated worse than a pirate when you pay for your software. You can't even properly lend or swap games with friends anymore, even on consoles like the Xbox 360 because of DLC.

Um... what was that about upgrade installs? I've certainly used those on non-OEM images. In fact,t he very first thing I do with an OEM image, after booting it to make sure the computer works, is reformat that shit right off.

Mind you, the previous copy of Windows was legit, but it was certainly not OEM and I had no problem using an upgrade copy. Installer checks, sees an old version, then goes ahead and reformats the drive for a clean install.

But the upgrade to put a legit copy on a new system. But apparently... this upgrade is only properly licensed if I put it on the computer that had the OEM version of XP on it.

Well, your first mistake was buying the "upgrade" version and thinking that was the appropriate version to do a fresh install on a new system. What did you think the purpose of the non-upgrade version was?

Even at that, though, Microsoft's upgrade terms are incredibly lenient. The only requirement you have to meet when installing the upgrade version of Windows 7 is that the computer you're on must have a partition on some hard disk in it that has a previous version of Windows on it. So if you plugged your

While they're at it, they should get with Consumers' Union and go after the wireless providers, credit card lenders and all those other services where the terms of service are basically "we've got the gold, we make the rules". Onerous contract terms and gullible consumers that think they have to have these services are the root of all evil in our service/consumer based economy (speaking for the US).

If you really, really, really care THAT DAMN MUCH about modding your XBox, you'd buy 2 -- one for online play on XBL, the other for souped-up media center purposes. Can't afford a second XBox? Then maybe modding and/or XBL isn't for you.

A modded XBox increases the probability the end user has a cheat enabled to give you an unfair advantage in an online competitive game. I applaud any service that wants to preserve purity in a competitive arena. It's just like every major competitive sport having regulations over the specifications of all equipment used in all games.

My console was banned for being modded. The thing is, it was modded because the DVD drive died and I replaced it... the only way I could do this "legitimately" was to buy a whole new console, since MS claimed it was no longer under warranty. I wasn't about to spend $250 or whatever it was at the time (this was a couple years ago) to buy a whole new console when I could buy a new drive online for less than $60.

So I had a modded console... I played exactly 2 games that entire time, Rock Band and Rock Band 2. The original of Rock Band worked perfectly and when Rock Band 2 came out, I purchased it... well the original had trouble playing in the console, so I used a burned copy, which ironically played fine. During that time, I purchased nearly 100 songs for RB and RB2 and maintained a Live Gold subscription. My gamer profile confirms that I haven't played any other games than RB and RB2 since I replaced the drive.

So my console is banned. I will cancel my Live Gold account ($50+ a year or something) and I will no longer be able to purchase songs for RB2 or future RB games that come out. So by banning me, they've lost a continual revenue stream that has exceeded the purchase price of a console. Sure, they already have my money for the RB2 songs I bought, but they aren't able to get more, even if I wanted to pay them money.

What kind of stupid idea is this? Unilaterally cut off your customers who pay you money regularly and prevent them from being able to pay you any more money. Wow. What a brilliant business move.

My console was banned for being modded. The thing is, it was modded because the DVD drive died and I replaced it... the only way I could do this "legitimately" was to buy a whole new console, since MS claimed it was no longer under warranty.

Seems like a perfectly valid reason to me for Microsoft to ban you from xbox live. They did say no unauthorized modifications.

So by banning me, they've lost a continual revenue stream that has exceeded the purchase price of a console.

Rights? What "rights" do you have here aside from choosing whether or not to give a company money? Your basic human rights aren't being violated here, and I don't see anything illegal happening with respect to a company's right to set terms of service for the use of their network.

They have the right to run their service the way they want to. they also have the right to change their terms of service when ever they want to and don't even have to tell you. if you thought modding a console and never would get banned well they you were ignorant and its no excuse to take it out on them for it, just like the law you are still guilty

I guarantee that the vast majority of terms of service publications include a clause that the customer agrees to be bound by future versions of the TOS. It's my opinion that notifying customers each time a substantive change to the TOS is made is the right thing to do, but there's no real requirement for companies to do so (unless applicable law requires such notification).

They have the right to run their service the way they want to. they also have the right to change their terms of service when ever they want to and don't even have to tell you.

Actually, if ToS were changed, and users were banned under the changed clauses, I think there would be a point here. It may be legal, but personally, I find contracts that can mutate like that abhorring, especially when you pay dearly for the privilege of entering one in the first place (i.e. ToS change, you don't like the new ones, but if you drop out now your Xbox is useless and you've paid for it... and the only information you had when you paid the money was the original ToS).

You can restore your banned console to its pre-banned state if you are handy with a soldering iron and have an old printer cable. Your console is still banned, but your NAND will be at its prior state so you can transfer saves, install to HDD, and use MCE. Just go to xboxscene.com and read about it.